In the Matter of Anthony J. Russo, Respondent,v.New York City Department of Education, Appellant.BriefN.Y.March 24, 20151 February 10, 2015 Andrew W. Klein Clerk of the Court New York State Court of Appeals 20 Eagle Street Albany, New York 12207 Re: Matter of Russo v. N.Y.C. Department of Education APL-2014-00279 Dear Mr. Klein: In response to this Court’s November 18, 2014 letter request, this letter brief is submitted on behalf of petitioner-respondent Anthony Russo, who is pro se. In this Article 75 proceeding, the Appellate Division, First Department, by a vote of three-to two, vacated an independent labor arbitrator’s determination that petitioner Anthony J. Russo should be dismissed from his employment as a New York City public school teacher and remanded the matter for imposition of a lesser penalty. Oral argument had been heard at the Supreme Court, Appellate Division, First Department by petitioner-respondent Anthony J. Russo and a representative of The City of New York Law Department on March 4, 2014. The Decision/Order of the Supreme Court, Appellate Division, First Department was entered on July 3, 2014. This Court should affirm that ruling, because the arbitrator’s penalty of dismissal is indeed shocking to one’s sense of fairness – which is the legal standard that must be met before a court may vacate such a penalty as excessive. The record here upholds the idea that the independent arbitrator’s determination to dismiss Russo is shocking to one’s sense of fairness. After a 22-day hearing, the arbitrator’s Decision failed to take into account the fact that the respondent’s ability to control his class improved 2 dramatically. The evidence is that there were no incidents of misbehavior by the students during the entire third school year (2010-2011). This was a complete turnaround. What’s more is that he accomplished this on his own. As per the entire record, no administrator, no colleague, no outside consultant ever presented a proven-effective behavior modification system that addressed both positive and negative student-behaviors to the respondent so that he could control the behavior of his students. The respondent used his own system, and it worked very well in the third year. As per the record, no allegations whatsoever were pressed against the respondent during the third year. Five consecutive unsatisfactory-rated observation reports that spanned all of the first charged school year (2008-2009) plus the first month of the second charged school year (2009-2010) clearly indicated the same primary, core, fundamental, instruction-related problem that the respondent had – which was difficulties in creating lesson plans from a circuitous, verbose, vague, voluminous source-document called the curriculum calendar in reading and writing. The record here will show that so-called remediation provided by the school’s administration, or anyone else, never addressed this problem for the entire 3 school years. All 14 unsatisfactory-rated observation reports (out of a total of 16) indicate a total lack of remediation with respect to the respondent’s instruction- related problem. All exhibits and testimony presented indicated a total lack of assistance with this fundamental problem – the remediation of which was critical to respondent’s success as a teacher. The entire record indicates that the school’s administration neglected and refused to remediate the respondent properly. To reiterate, the respondent’s instruction-related problem was creating satisfactory lesson plans from the curriculum calendar of reading and writing – which is literacy. Literacy is in the educational domain called English Language Arts. Observation reports D14 (12/3/2009), D17 (9/25/2010), D18 (10/30/2010) and D20 (4/1/2011) all promise English Language Arts (“ELA”) assistance to respondent. All 4 were authored by the school’s principal, DZ. The record shows that none of this promised remediation ever happened. Page 120 of the hearing officer’s report (or page 125 of respondent’s Appendix) says: 3 “Principal Z informed respondent that he would be supported by AR, the school’s English Language Arts developer (See, e.g., Tr. 394, Exhibit D-17). Respondent testified that that rarely happened (Tr. 2259, 2271-72, 2297). The Department never rebutted respondent’s testimony and never offered any specific evidence or testimony about such ELA support. For example, while Z testified that he would arrange for respondent to be supported by R, he did not testify that such support actually took place. Based on this record, I find that R did provide respondent with support. However, the record is unclear as to how often respondent was supported by the ELA developer and what that support entailed. Thus, the Department did not establish that such support was valid remediation.” However, the arbitrator demonstrated bias against respondent by labelling various untargeted, sporadic, superficial, irrelevant and meager so-called attempts at remediation as valid, when in fact, they were invalid. He did this to undermine the respondent’s case and to falsely justify possible termination. In addition, the school’s administration refused to grant respondent a final chance to succeed after an outside consultant’s remediation was completed on April 15, 2011 – despite having over two months to do so via at least 2 lesson observations. This offer of a final chance to succeed was the purpose of the remediational program called PIP Plus which provided the outside consultant (or peer observer). This offer of a final chance to succeed is implicit in the October 13, 2007-October 31, 2009 Agreement between the Board of Education of New York City and the United Federation of Teachers – which the school’s administration violated. Additionally, the hearing officer’s omission in his Decision of the fact that the school’s administration failed to provide the respondent with a final chance to succeed via observation after a remediation program ended, is another example of bias against the Respondent. This means that the arbitrator was not neutral and in fact was biased against respondent. This bias violates Education Law 3020-a. For this reason, along with others, which are covered in great detail in this brief, the respondent’s termination is certainly shocking to one’s sense of fairness and therefore, the respondent’s penalty should be less than termination. The majority determination is correct. 4 During the 3020a proceedings, the respondent’s lawyer, at times, told him not to testify. The respondent did not understand this idea. The respondent would have testified about behavioral incidents, for example. Being forced to not testify was very unfair to the respondent. The remainder of this section will address certain statements made in the brief which is authored by The City of New York Law Department. Paraphrasing of the brief’s statements will be used. Page 7, letter a, says that respondent was passive in the face of student-misbehaviors. The respondent admits that the students misbehaved at times during the first two school years at issue. Respondent used behavioral contracting to try to prevent this occasional misbehavior. The system worked most of the time, but occasionally it did not. The respondent did not respond passively when misbehavior happened. He repeatedly raised his voice and ordered the students to stop. However, sometimes this did not work and respondent became exhausted and frustrated at the fact that they did not listen to him – despite the classroom rules being conspicuously posted and respondent saying he will be calling the parents to speak about the misbehavior. Respondent eventually sat down in discouragement and extreme frustration. This is not passivity. All this happened before any supervisor watched. Fortunately, it did not happen often. Page 7 refers to an incident where students viewed pornography. Through interaction with his students, respondent ascertained that they wanted to become mature and be respected because of it. Respondent responded to this by treating them, to some extent, like adults. The respondent hoped that if he treated his students like they were adult, they would act like adults. When the students were at the computer, respondent assisted them with accessing either a reading or mathematics website, whichever was decided by respondent. The respondent checked on his students sporadically. He did not constantly babysit them because they were middle school age and wanted to be adult-like. So respondent treated them like adults. Respondent was teaching them a certain lesson. The lesson was that if his students honored their teacher’s (respondent’s) trust and behaved well – which is adult-like – they would develop high self-esteem and would be respected as adults by the respondent, other 5 adults, and students in general. So, respondent monitored the computers sporadically. Every time he monitored a computer the students would be watching the appropriate website. However in one instance, another teacher who was in the room saw a few students looking at inappropriate images. Later the computer was taken away. From experience, respondent had reason to believe they’d be appropriate with the computer, but in this instance, the students let themselves down as well as respondent. Respondent’s students were not yet ready to be treated as adults. The respondent had a good rapport with his students’ parents and called them at least monthly. The respondent withdrew privileges and called parents if his students misbehaved. Sometimes, the students broke their behavioral contracts. This frustrated the respondent and he complained to the principal about it. The principal’s response would typically be: “Who’s the adult in the room?” This did not help the respondent, he just felt worse. Neither the principal, nor other administrator, nor fellow teacher, nor outside consultant ever presented or suggested a proven-effective behavior modification system to the respondent. Had such a system been recommended, the respondent would have used it consistently and would have begun using it in a heartbeat – but this never happened – as per the record. On the bright side, no student got hurt. One incident involved a girl who took out a blade. She did not cut herself. The respondent raised his voice, and approached her, and ordered her to put it away, which she did, but not immediately. Although respondent called security when confronted by particularly troubling misbehavior, unfortunately security did not show up half the time. Respondent admits that his dialing for security was done quickly and nervously, which accounts for possibly misdialing. The 2 years discussed above were the least successful that the respondent ever had in his entire satisfactory-rated 19 years, 8 months and 10 days career as a teacher. The Law Department’s brief inaccurately reports that respondent taught for several years. Nineteen years is much more than several years. Respondent has documented proof of teaching longevity and would furnish it upon Court’s request. Very fortunately, without help, he turned things around entirely in the 3rd charged school year. There were no nasty incidents by his 6 students and his behavioral system worked. Because there were no incidents, there were neither allegations nor specifications at all in the 3rd charged school year. If permitted to continue teaching, respondent, of course, would be teaching classes that he’s never taught before. In light of this, he’d voluntarily pay for and take a few courses in classroom management. The point of which would be that the respondent would then be fully prepared to handle any negative student-behavior, no matter what it is. The respondent appreciates the fact that the Law Department’s brief recognized his lesson planning progress in the third year, namely that he made attempts to follow the Teacher’s College workshop model as indicated in D4. (See bottom p. 22 of Law Department’s brief.) In D4, supervisor/observer YP states that respondent conducted a Reading Workshop that contained some positive aspects. However, she did not explain what these positives were. This was very unfair to respondent. She also states (Bates p. 183) that the questions were all recall yes or no. This was not true. She listed the questions – here are a few: What is fiction? Where do you think the story took place? What happened? When does the story take place? These are not yes or no questions. YP wrote the lesson lacked rigor. Another question was: Was it fair that he didn’t appreciate being loved? This requires a conclusion to be drawn by the student, which she suggests to do in grade 8 paragraph. This “fairness” question was virtually the same as the question she wrote near bottom of the page. YP wrote: Concern 2: During your modeling you provided only explanation-based examples. This is another invalid criticism because page 4 of D46A, “The Architecture of Effective Mini-lessons” indicates that it is fine to teach by explaining and giving examples. (See D46A, p. 4, Teaching Method: explain and give examples.) Also, it is clear that during the pre-observation conference, she did not look at the respondent’s lesson plan. Had she looked at his lesson plan, she would have altered the respondent’s questions – which she didn’t. This lesson took place on 1/31/2011 during the 3rd charged school year (2010-2011). It must be noted that there was still no help with lesson plan creation from the curriculum calendar with corresponding alignment to D46A which this lesson was built on. Because of invalid criticisms, this lesson was unfairly rated as unsatisfactory. 7 Respondent also appreciates Law Department’s recognition that “PIP Plus observer offered notes of encouragement” to the respondent. However, the brief does not note the fact that the PIP Plus observer said in testimony that 2 of respondent’s lessons that he observed were satisfactory. The remainder of this brief argues that the so-called remediation of the respondent’s instruction-related problem that the school’s administration provided or authorized was not valid – which contradicts the hearing officer’s conclusion that almost all such remediation was valid. However, it is critical to note that both the respondent and hearing officer conclude that the so-called remediation provided by AR who was the English Language arts (“ELA”) staff developer was invalid. Her remediation would have been relevant and absolutely crucial to the Respondent’s success as a teacher because her area of expertise was literacy – the precise area in which the respondent had his difficulty. Also, the Teachers College authorized her as the school’s staff developer (as per D14, authored by Principal DZ), (TC meant Teachers College). Teachers College was the entity that produced the curriculum calendar which was the source-document of the reading workshop and writing workshop lesson plans. So AR, the English Language Arts (“ELA”) staff developer of the school was the expert at creating lesson plans from the curriculum calendar – which was the crux of the respondent’s instruction-related problem – the remediation of which the hearing officer and respondent agree was rarely done. (Hearing Officer’s Decision p. 120 or p. 125 of respondent’s Appendix.) 8 After more than almost 14 successful school years as a special education teacher in the New York City public schools system, the respondent began teaching special education at the school at issue in September, 2005. Respondent was subsequently rated as satisfactory for the 2005- 2006, 2006-2007 and 2007-2008 school years. By way of submitting school year-end preference sheets to the principal, respondent requested to use his permanent regular education teaching license and permanent regular education New York State Certification to teach regular education instead of special education. His requests were always denied by the principal. The tenured respondent was assigned to teach a self-contained special education class (#171) in September 2008. In the class of about 12 students, most of the students’ Individualized Education Plans (IEPs) indicated some degree of behavioral problems. In fact, one student was categorized as bipolar. Assistant Principal SS testified that the class was emotionally disturbed. The respondent found the assignment difficult because of occasional student-misbehavior. His use of behavioral “contracting” of students as a behavior modification plan worked most of the time but not always. As per the record, respondent did not receive training for writing lesson plans for any subject in any month. He was simply given a source-document called “curriculum calendar” of reading and writing – from which he was told to create lesson plans for the subjects called “reading workshop” and “writing workshop.” The respondent found this difficult because the curriculum calendars were circuitous, vague, verbose, voluminous and lesson plan-unfriendly. However, the respondent did the best he could despite being untrained and new to the procedure. The respondent also had to create lesson plans for other subjects such as mathematics workshop. science, social studies, non-workshop reading and non- workshop writing and non-workshop mathematics as well – without training – from other source-documents, such as books, documents and Aussie curriculum materials (used for math workshop lesson planning). On a daily basis, the respondent created a lesson plan for the reading workshop lesson and another lesson plan for the writing workshop lesson, from the curriculum calendar, because each subject was taught on a daily basis. 9 The curriculum calendar was a document that was comprised of over 80 pages. In general terms, it discussed the reading/writing genres that were to be taught during the school year. A different genre was to be taught every month. The genre was also called the “unit of study.” Three examples of the reading/writing genre were nonfiction, fiction and realistic fiction. Since the school week is 5 days, there are most often 20 school days in a month. Let’s say the month is September and the genre to be taught is nonfiction. Nonfiction would be the genre (unit of study) to be taught for the reading workshop as well as writing workshop lessons. The curriculum calendar was published by the Teachers College Reading and Writing Project (TCRWP). The respondent received a copy of it from his supervisor (YP) in early September 2008. He used it to create his reading workshop and writing workshop lesson plans. The lesson plan outline that the respondent was required to use for his lesson plans was indicated in a document called “The Architecture of Effective Mini-lessons.” It was published by TCRWP. The lesson plan parts were: Connection, Teaching Point, Strategy (modeled by teacher) Active Involvement (of the students), Link, Independent Work Time (with individual, teacher- student conferences and differentiated work), and Teacher shares student work (D46A). The combination of the Connection, Teaching Point, Active Involvement, and Link was called the “Mini-lesson.” This lesson plan format was called the “Workshop Model.” When writing his lesson plans, respondent had difficulty deciphering these parts from the curriculum calendars. He had particular difficulty deciphering strategies. When he asked his Supervisor for assistance, he was told to do the best he can with the curriculum calendars. So the respondent did the best he could with these and other source-documents. The lesson plan above should have had a behavioral component, but it did not. Such a component would indicate what the teacher will expect of his students and what the students expect from the teacher. A reward system should have been reflected in the plan, but it did not. Positive and negative student behavior should have been addressed by the plan, but they were not. So the Respondent just used his behavioral contracting – which was not consistently successful with class #171. The lesson plan outline of the document called “The Architecture of Effective Mini-lessons” did not have a behavioral component, but it should have. In addition, 10 the document did not explain how each student’s Individualized Education Plan (IEP), which had goals for each student, was to be incorporated in the reading workshop and writing workshop lessons plans. Neither the administration of the school, nor anyone else, ever explained this to the respondent. To sum up, although the respondent used a lesson plan format which was the same as the one outlined in “The Architecture of Effective Mini-lessons” to outline his lesson plans, he had difficulty deciphering what the various parts were from the curriculum calendars of reading and writing for his reading workshop and writing workshop lesson plans. This was highly frustrating for the respondent because the school’s administration required respondent to do the best he can, on his own without assistance, which he did starting in September 2008. (“The Architecture of Effective Mini-lessons” was called D46-A during the 3020-a hearings.) (See the 4-page document, it is pp. 157-160, inclusive in the Appendix.) Over the 3 school years at issue in this case (2008-2009, 2009-2010, 2010-2011) 16 of the respondent’s lessons were observed by the school’s administration. Each observation was written-up by the administrator who observed the lesson. The written-up document was called an “observation report.” The observation report rated the observed lesson. It said what was appropriate and inappropriate about the lesson. It also said what should be done in future lessons, so as to avoid the negative features of the observed lesson. Most of the 16 observation reports rated the observed lesson as unsatisfactory. The unsatisfactory-rated observation reports indicated that the respondent had a fundamental and core problem. The problem was in deciphering and creating satisfactory lesson plans. According to the entire record, the respondent had not received training in deciphering and creating lesson plans from any source – documents such as the “curriculum calendar,” the Aussie curriculum materials, books and other documents. The following paragraph will detail one of the unsatisfactory rated observation reports. The exhibit number, the date of issue, the date of the observation and the observed subject will be given. The exhibit number will be given first and then the following 3 items will be bracketed, namely the date of issue, the date of the observation and the observed subject. After the 11 bracketed information, other information may be in parentheses or the observation report will be quoted. Finally, the Appendix page numbers of the observation report will be given. D2, [12/4/2008, 9/25/2008, language arts]: “The lesson that you conducted was not aligned to our instructional goals or reading/writing curriculum.” “The architecture of an effective mini- lesson has a structure that must be followed.” “There was no evidence of strategy lessons.” (The observed lesson was rated as unsatisfactory, as indicated by the observation report.) (Appendix pp. 141-143) D3, [12/3/2008, 12/3/2008, writing workshop]: “You didn’t conduct a writing workshop aligned to our Unit of Study” (unit of study meant genre). (The curriculum calendars for reading workshop lessons and writing workshop lessons spoke about the units of study which were genres. At the school, a particular genre (unit of study) would be taught via reading workshop and writing workshop lessons, one of each per school day. Usually, a different genre was taught every month. Two examples of the genre would be nonfiction and realistic fiction.) “You must always have a comprehensive lesson plan that adheres to the curriculum calendar.” “Furthermore, the planning and execution of the lesson required alignment with the architecture of a mini lesson as outlined in the Teacher’s College Reading & Writing Project.” (Teacher’s College Reading & Writing Project was sometimes indicated by TCRWP.) “You did not support learning by modeling a strategy.” (The observation report said that the observed lesson was rated as unsatisfactory.) (Appendix pp. 144-146) D45, [2/21/2009, 2/11/2009), writing workshop]: “The connection to previous lessons within the current writing unit of study was never accomplished.” (Connections had to be deciphered from the curriculum calendars – in this case, it was the curriculum calendar for the writing workshop because the lesson was a writing workshop as indicated in the brackets above.) “You did not demonstrate sufficient planning and preparation or more effective use of appropriate teaching methods or strategies.” “Together we identified several deficiencies in your execution of the workshop model including the architecture of a mini lesson.” (The observation report indicated that the observed lesson was rated as unsatisfactory.) (Appendix pp. 147-148) 12 D46, [9/19/2009, 9/17/2009, writing workshop]: The observation report indicates that the Respondent did not connect prior lessons via conducting a mini lesson. No strategy was taught. “Lessons should always be aligned to the school’s instructional goals in accordance with the TCRWP reading and writing curriculum.” “Your lesson plans should adhere to the workshop model…” (The observation report indicates that the observed lesson was rated as unsatisfactory.) (Appendix pp. 149-150) D47, [10/9/2009, 9/30/2009, writing workshop]: “At our post observation conference…the discussion centered on the deficiencies of the lesson I observed and its lack of alignment to our instructional goals or reading/writing curriculum.” “There was no specific focus on a strategy or skill.” (According to the observation report, there was no active involvement session.) (“Active involvement” is part of the workshop model for the mini-lesson for which the structure is outlined on page 3 of D46A – “The Architecture of Effective Mini-lessons.”) (The mini-lesson is part of the reading workshop lesson plan – it is also part of the writing workshop lesson plan.) (Appendix pp. 151-152; both sides of p. 152) To sum up, the respondent was required on his own to decipher the lesson plan parts that were listed in “The Architecture of Effective Mini-lessons” from the curriculum calendar of reading and writing in order to create lesson plans for the subjects of reading workshop and writing workshop for a given month. He had to do this for (usually) 20 consecutive school days so as to create the 20 lesson plans for the reading workshop lessons as well as the 20 lesson plans for the 20 writing workshop lessons. Doing this would enable the respondent to completely teach the month’s genre (unit of study). The “workshop model” that “The Architecture of Effective Mini-lessons” – D46A outlines had to be filled out according to the “curriculum calendar” of reading and writing. Doing this was required by the school’s administration. Doing this was difficult for the respondent. To sum up, unsatisfactory-rated observation reports D2, D3, D45, D46, D47 which spanned the entire first charged school year (2008-2009) and the first month of the second charged school year (2009-2010) clearly indicated that the respondent’s primary, core problem was in lesson 13 planning. According to the 5 lesson observation reports above, the respondent needed the following assistance in order to write excellent lesson plans. (1) Deciphering lesson plan parts of “The Architecture of Effective Mini-lessons” (D46A) from the curriculum calendar of reading and writing and thereby creating the 20 reading workshop and 20 writing workshop lesson plans for a given month. 2) The assistance must be for 20 consecutive school days so that a particular month’s genre (unit of study) would be completely taught. Consecutive school day remediation was necessary because the lessons were daily and developmental (i.e., each was “connected” – as per D46A – to the prior). 3) The assistance must be individualized and hands-on. 4) The administrator and respondent must work cooperatively. 5) A behavioral plan should be incorporated into the lesson plan to control student behavior. 6) Student IEP goals should be reflected in all 40 lesson plans. 7) There must be a focus on deciphering strategies from the curriculum calendar because this was the Respondent’s most difficult problem. Writing excellent lesson plans was essential to respondent’s success as a teacher because of the following enumerated reasons: 1) The lesson plan described the parts of the entire lesson (examples: teaching point, strategy, independent work (including differentiation). 2) The lesson plan should have indicated time-intervals for each part of the lesson (this dictates a good flow to the lesson). 3) If adhered to by the teacher, the entire lesson would be taught. 4) Expectations of students in terms of behavior and participation must be indicated in the plan and told to the students at the beginning of the lesson. 14 5) The respondent would have conscientiously followed the lesson plan steps during the lesson and if the students behaved well and participated appropriately, then the respondent’s corresponding observation report would have been rated as satisfactory. 6) Observation reports were critical in determining the respondent’s end-of-the-school-year rating. (10/13/2007-10/31-2009 Agreement between Board of Education of New York City and the United Federation of Teachers covering Teachers p. 121 section 9. Incompetence Cases.) This agreement says” “During the second school term, although the employee will still be in the “PIP,” the administration is free to conduct observations and to rate the employee accordingly. Since the end-of-year rating will be based on these observations, a minimum of two (2) observations shall be conducted during the second school term.” 7) An end-of-the school year rating of “satisfactory” for the school year 2010-2011 (the 3rd charged year) would have meant that the respondent would not have faced 3020a charges and therefore would not have been terminated. The essential point here is that the administration had to remediate the respondent by assisting him on a daily basis for 20 consecutive school days so that he and the administrator would work collaboratively to create 40 excellent lesson plans which were required (20 for reading workshop/20 for writing workshop) to completely teach the month’s genre (unit of study). This was the only valid remediation for the respondent with respect to his primary, core need. If this remediation was not done, then any other remediation is neither significant nor helpful nor would it be valid with respect to the respondent’s primary, core need in lesson planning. A major point here is that the lesson plan is the heart and soul of the corresponding lesson. The essential point here is that excellent lesson planning was the foundation for the respondent’s success as a teacher in every school year. And assistance in lesson planning from the curriculum calendars in reading and writing was exactly what the respondent needed help with – and the school’s administration knew this and clearly expressed this need in 5 observation reports (D2, D3, D45, D46 and D47) which spanned the first charged year and the following month. As per the record, for the entire three charged years, neither the school’s 15 administration – nor the PIP Plus program – nor the ELA developer – nor anyone else ever took the time to remediate this need. The Respondent faced no allegations at all in the 3rd/final charged school year, namely 2010- 2011 (Hearing Officer’s Decision p. 135 or respondent’s Appendix p. 140). Had the respondent received the remediation that he needed in lesson planning as described just above early in 2010-2011, coupled with no allegations against him, he would have received a year-end rating of satisfactory and would not have faced 3020a charges and of course would not have been terminated. Actually, the 20 consecutive day hands-on remediation to create excellent lesson plans for the 20 reading workshop lessons and 20 writing workshop lessons from the curriculum calendar was the bare minimum that the respondent needed – but not even this was done – as per the observation reports labelled D2, D3, D45, D46 and D47. Excellent remediation would have been to assist the respondent with lesson plan creation for all the subjects that the respondent had to teach for a given month (20 school days), not just the 40 reading/writing workshop lessons. Doing so would have meant that the remediation would have yielded about 100 lesson plans because the respondent, on average, taught 5 subjects per day. Source documents, such as the Aussie curriculum materials (Aussie is alluded to in Hearing Officer’s Decision, p. 126, or p. 125 of Appendix) for mathematics workshop lessons, text books/books for science and social studies lessons and other documents/books for non-workshop lessons in reading and non-workshop lessons in writing, would have been used to create the lesson plans. This remediation for 20 days was needed by the Respondent but was not given in the 3 charged school years. Unsatisfactory-rated observation reports in the second charged school year (2009-2010) indicated this. As per the entire record, the targeted, appropriate remediation that the respondent clearly needed as per the school’s administration was never given to him. Had the respondent been given the needed, individualized hands-on remediation in lesson plan creation from the curriculum calendars for 20 days as described above, the 40 lesson plans 16 created would have been presented as evidence in the 3020a hearings, by the Department of Education. However, there was no such evidence because this targeted and valid remediation that should have been afforded the respondent did not happen for the entire 3 charged school years (2008-2009, 2009-2010, 2010-2011). The following will discuss the forms of remediation that were provided to the respondent. The Hearing Officer evaluated almost all of these a as valid – but, in reality, were not valid because of insignificance and irrelevance with respect to the respondent’s primary core need of lesson plan creation – the remediation of which was critical to the respondent’s success as a special education teacher. The first form was “Observation Reports.” None of the observation reports indicated that the respondent had been given or was being given hands-on, individualized assistance with lesson plan creation on a daily basis from the source documents called curriculum calendars or other source documents such as the Aussie curriculum materials or books, textbooks or other documents. For this reason, this form of remediation did not assist respondent with regards to his primary, core need in lesson planning. Therefore, the remediation afforded by the observation report was not helpful and therefore was not valid (see Appendix p. 114 or Hearing Officer’s Decision p. 109). Another form was “Plans of Assistance.” This included: (1) weekly submission of lesson plans for review. The respondent did hand in his lesson plans for review (see D57). This remediation was not valid (see “Lesson Plan Review” section of Letter); (2) informal observation of respondent. This was done and the result was an observation report for each informal observation. Since no informal observation report indicated that the respondent had been given or was being given the hands-on, individualized daily assistance in creating lesson plans from a source-document, this was therefore invalid remediation; (3) observation by respondent of other teachers. Specifically, the respondent was scheduled to visit only one other teacher (RS). The respondent visited and observed RS teaching his class once or twice as scheduling would allow. RS did not provide any lesson plans to respondent nor would he provide any assistance whatsoever with curriculum materials, as per the record. Because RS did not assist respondent at all with his primary, core need which was lesson plan creation from 17 source-document(s), the remediation that RS afforded respondent was not valid; (4) weekly meetings with Assistant Principal YP to review teaching practices and lessons. In reality, YP did not meet respondent on a weekly basis. As per the record, YP did not provide individualized, hands-on assistance with creating lesson plans from source documents, such as the curriculum calendars, on a daily basis for at least a period of 20 days. Accordingly, there was no such evidence presented by the Department of Education in the 3020a hearings. However, she did write one lesson plan for the respondent which was evaluated as poor by another supervisor (SS). This situation is referred to in the Decision and Order of the Supreme Court, Appellate Division, First Department (entered 7/3/2014). The decision/order says on pp. 49-50, “In one instance petitioner sought help designing a lesson from one assistant principal but when a different assistant principal observed the lesson that the first assistant principal had prepared with petitioner, the second one rated it as unsatisfactory because the lesson failed to follow a specific structure established by written guidelines.” However, YP did model a writing workshop lesson for respondent on 12/9/2008 (D6). YP conducted a follow-up writing workshop observation of respondent on 12/11/2008. Respondent’s observation report had the rating of satisfactory for the observed lesson (R2). For the entire 3 charged school years (2008- 2009, 2009-2010, 2010-2011) this was the sole instance in which an administrator modeled a lesson for the respondent and then conducted a timely observation of the respondent – which was based on the prior modeling by the administrator. As per the record, YP almost never reviewed the respondent’s lesson plans. The fifth and final form of remediation as per the yearly “plan of assistance” was “attendance by Respondent at workshops.” The school’s administration scheduled the respondent to attend one such workshop, which he did. It was a big group situation in an auditorium. The topic had nothing to do with writing lesson plans for school subjects from source documents, such as curriculum calendars. The overall assistance by YP only once included lesson plan creation, that is, she wrote an entire lesson plan for respondent. However, she did not use the curriculum calendar or other source document(s). Her remediation constituted occasional brief meetings which never involved lesson plan creation from curriculum calendars or other source document(s). When respondent asked her 18 about such lesson planning help, she said that it was in the English Language Arts (ELA) developer AR’s expertise, not hers. Another form of remediation was “Lesson Plan Review.” The respondent discusses this in another section. His conclusion is that it was invalid remediation. Another form of remediation was “Professional Development.” The hearing officer correctly concluded that this was not sufficient remediation. This type of remediation did not involve lesson planning assistance on a daily basis for any length of time and so was not valid remediation. Another form of so-called remediation was “Assistance by Fellow Teachers.” As per their testimonies, none of these 6 teachers assisted the Respondent with his primary, core need which was lesson plan creation from the curriculum calendars (as described above). (See their transcripts.) This assistance was sporadic, haphazard and did not remediate respondent with significance at all. The only exception was AG. She assisted respondent with filling out Individualized Education Plans (IEPs) by answering an occasional question. However, she did not assist with incorporating IEPs into the respondent’s lesson plans. In a sense, part of her remediation was valid. However, her remediation did not help with lesson planning, which was the respondent’s primary, core need. Another form of remediation was the “Annual Performance Review.” Each review rated respondent’s performance and said what was wrong. No review indicated the daily hands-on assistance in lesson planning from source documents, the respondent’s primary, core need. Therefore, the remediation was invalid. Another form of remediation was called “AUSSIE.” The hearing officer indicated that the Department of Education failed to prove that AUSSIE provided remediation. Another form of remediation was support by AR, the school’s English Language Arts developer. The hearing officer correctly concluded that the Department of Education did not establish that 19 support by AR was valid remediation. (See p. 120 of Hearing Officer’s report, 2nd paragraph of “Other remediation.”) (See p. 125 of Appendix.) The final form of remediation was a program called PIP Plus. This remediation is discussed in another section of this letter. The conclusion of the respondent is that this program of remediation was invalid. The reasons will be discussed in detail in the other section. To sum up, the above remediation in part or in its entirety, which was afforded the respondent was not valid because it did not provide hands-on assistance with lesson planning from the curriculum calendars in reading and writing in order to create 20 reading workshop and 20 writing workshop lesson plans for a period of at least 20 consecutive school days in order to completely and satisfactorily teach one month’s genre (unit of study) of literacy. This primary core need was made crystal clear in 5 unsatisfactory-rated observation reports which spanned the entire first charged school year (2008-2009) plus the first month of the second charged school year (September of the 2009-2010 school year). The observation reports were: D2, D3, D45, D46 and D47 (see these observation reports in Appendix). In addition, the remediation indicated above did not assist respondent with lesson planning from other source-documents such as textbooks for lessons such as science and social studies. In addition, no transcript or transcripts of testimony indicated daily assistance in lesson planning for respondent for at least 20 consecutive days by using source-documents such as textbooks with which to create non-workshop lesson plans. In addition, during the 3020a hearings, there was no evidence presented that indicated that the respondent was assisted for at least 20 consecutive days so as to create the 40 required lesson plans with which to teach a month’s genre (unit of study) in literacy (reading and writing). At the 3020a hearings, no testimony or exhibits presented indicated that the Respondent was given hands-on assistance in creating lesson plans for the reading and writing workshop subjects from the curriculum calendars in reading and writing for even 5 days – consecutive or not. (5 days of such remediation would not have been sufficient and therefore would have been invalid remediation.) 20 The form of remediation that was provided for the respondent entitled “Lesson Plan Review” will be discussed here. The respondent’s conclusion is that this type of remediation was not valid. This contradicts the hearing officer’s conclusion that it was valid. (Hearing Officer’s Decision pp. 113-114 or Respondent’s Appendix pp. 118-119.) The hearing officer wrote “…there is evidence that the plans were reviewed and discussed with respondent.” However, the respondent clearly recalls that the batches of lesson plans that he handed in to 2 assistant principals, namely SS and YP, were never reviewed or discussed with him nor were these lesson plans reviewed and then sent or given back to him. Therefore, the school’s administration did not allow respondent to benefit by having had handed in his lesson plans to any administrator. This is why respondent concludes that this type of remediation was not valid. The hearing officer claims that the following exhibits constitute evidence that the lesson plans were reviewed and discussed with respondent” D32, D37, D39, D45, D57 and D58. Careful reading of these six documents reveals that respondent’s conclusion was correct and the hearing offer’s conclusion was incorrect. To reiterate, the respondent concluded that the remediation called “lesson plan review” was not valid because of 2 facts: (1) the lesson plans were not reviewed and discussed with respondent, and (2) the lesson plans were not sent or given back to the respondent, reviewed or not. If the “lesson plan review” was valid remediation, it would mean that the administrator reviewed the lesson plans, made corrections if necessary and then the plans were returned to respondent before the corresponding lessons were delivered – so that the respondent’s lessons would have satisfactory bases. However, this process never happened in its entirety. A little bit of evidence indicates that a supervisor may have reviewed respondent’s lesson plans on his or her own but did not return these lesson plans to respondent and did not share the review with the respondent. This means that handing in lesson plans for “lesson plan review” was a farce because respondent was not permitted by the administrator to benefit by the review. This was the situation because none of the 6 documents that the hearing officer cites above, namely D32, D37, D39, D45, D57 and D58 indicates that either of the 2 ways that respondent could have benefitted by the “lesson plan review” occurred, namely: (1) the administrator reviewed and discussed the lesson plans with the respondent, and (2) the lesson plans were reviewed and corrected if necessary and 21 given or sent back to respondent. This is why “lesson plan review” was not a valid form of remediation for the respondent. D32, D37, D39, D45, D57 and D58 indicate that the lesson plans that respondent handed in to the school’s administration were not reviewed and discussed with him or indicate that the lesson plans that respondent handed in to the school’s administration were not reviewed and corrected if necessary and sent or given back to respondent. In short, the 6 exhibits above constitute evidence that the type of remediation called “lesson plan review” was not valid remediation for the respondent. This flatly contradicts the hearing officer’s claim that “lesson plan review” was a valid form of remediation. Because the 6 documents that the hearing officer cites above provided absolutely no evidence that “lesson plan review” was valid remediation, the respondent claims that the hearing officer was being disingenuous and biased against the respondent when he wrote in his decision that “lesson plan review” constitutes valid remediation. The respondent invites the reader to examine the 6 documents above (D32, D37, D39, D45, D57, D58) to determine the validity of “lesson plan review.” If done, the reader will find that “lesson plan review” was an invalid form of remediation. There is another fact that indicates that the “lesson plan review” did not constitute valid remediation. This fact is that there was not even one Department of Education exhibit that provided evidence that any batch of lesson plans that respondent handed in to the administration was reviewed by the administration. In other words, there was not one Department of Education exhibit that was comprised of a batch (or a copy of each lesson plan of a batch) of respondent’s handed in lesson plans that had indications of having been reviewed by the administration. The following discussions tie into “lesson plan review.” A formal observation of a lesson given by the respondent which is observed by an administrator, such as the principal or an assistant principal, meant that prior to observation day the respondent had been informed by the administrator/observer-to-be as to the date/time of the observation. The administrator would indicate the subject to be observed. The administrator/observer-to-be and respondent would 22 arrange to have a meeting, which would generally take place a few days or 1 week later. This meeting was called a pre-observation conference. The pre-observation conference was held before the formal observation. The respondent’s lesson plan for the formal observation should be reviewed at the pre-observation conference, however, this almost always did not happen. An example of an administrator who did not look at the lesson plan during the pre- observation conference was the principal. The observation report was D20. The observation was the final one for the final charged school year (2010-2011). The principal labelled the lesson as “ELA reading” which it was not. The respondent said to the class that it was a Reader’s workshop (same as Reading workshop). This is a discrepancy which the principal needed to rectify by referring to the lesson plan – but he didn’t. He didn’t do this because he didn’t look at the respondent’s lesson plan during the pre-observation conference. Also, the respondent conducted a reader’s workshop because he had a teaching point, strategy, active involvement, independent work time, conferencing and sharing (nearly all the parts of the workshop model of D46A, “The Architecture of Effective Mini-lessons). However, the principal gave respondent no credit for this. Also, the principal walked out of the classroom before the lesson was over, as evidenced by his lack of describing the 2nd work time. This was extremely unfair to respondent because the respondent was conducting another independent work time during which he was going to assist his students with determining a clue and prediction which was a criticism by the principal. Therefore this observation report was unfairly rated as unsatisfactory. At the pre-observation conference, the administrator would talk in generalities about the lesson that he/she is to observe. However, the talk was not lesson plan specific. And the lesson plan was neither corrected nor analyzed by the administrator. In addition, the pre- observation conference was never memorialized by the administrator as a separate document. The respondent wonders why? Usually within 2 weeks after a formal observation, there would be a post-observation conference, administrator/observer and respondent would be present – no one else. The observed lesson would be discussed at the post-observation conference. The observation report written by the administrator/observer may be given to the respondent at the post-observation conference, but if not, it would be given to him within about a week after the post-observation conference. Basically, the observation report indicates the 23 administrator/observer’s description of the lesson, offers commendations and recommendations, and rates the lesson as either satisfactory or unsatisfactory. It was almost always the case that the administrator/observer of a formal observation did not indicate in his/her observation report that the respondent’s lesson plan was reviewed with respondent or was reviewed and then returned to respondent in the pre-observation conference. And in keeping with this, the respondent’s lesson plan was nearly never reviewed with respondent or reviewed in the pre-observation conference and then returned to respondent. This is further evidence that the type of remediation called “lesson plan review” was in fact not valid. The following observation reports indicated that there had been a pre-observation conference prior to the observation of the respondent’s lesson. They are: D3 (pre-observation conference 11/24/2008); D47 (2 pre-observation conferences, 9/25/2009 and 9/29/2009); D4 (pre- observation conference 1/19/2011); D45 (2 pre-observation conferences, 2/9/2009 and 2/10/2009); D14 (pre-observation conference 12/02/2009); D18 (pre-observation conference 10/22/2010); D15 (pre-observation conference 1/14/2010; D48 (pre-observation conference 3/3/2010); D20 (pre-observation conference 3/17/2011); respondent’s Exhibit #8, namely R8 (pre-observation conference 1/26/2010). To recap, the observation reports above, namely, D3, D47, D4, D45, D14, D18, D15, D48, D20 and R8 are all formal because each indicated that at least one pre-observation conference was held before the corresponding lesson was observed. Eight observations had one pre-observation conference before the lesson was observed and two had 2 pre-observation conferences before the lesson was observed. Careful reading of the 10 formal observation reports above reveals that each of the 10 corresponding lesson plans falls into one of the following three categories, which are: the lesson plan was not reviewed with the administrator and respondent present in the pre- observation conference or that the respondent’s lesson plan was reviewed by the administrator but not returned to the respondent prior to the observation of the lesson or there was no comment about the respondent’s lesson plan at all in the observation report. No matter which of the 3 categories above applies to a particular lesson plan, the fact is that “lesson plan review” as a form of remediation regarding the plan did not apply. “Lesson plan 24 review” as a form of remediation did not apply to any of the lesson plans which corresponded to the 10 formal observation reports above. Therefore, the following conclusion is accurate with respect to the respondent’s handed in lesson plans to the school’s administration – which was required and fulfilled by the respondent – the administration did not remediate the respondent with “lesson plan review” of any of the lesson plans that corresponded to respondent’s 10 formally observed lessons which spanned the 3 charged years. Therefore, the foregoing provides conclujsive evidence that the hearing officer’s conclusion that “the Department’s lesson plan review constitutes valid remediation” is not true. (Hearing officer’s Decision p. 114 or respondent’s Appendix p. 119.) The formal observation of a teacher’s lesson was one of two types of teacher observations which were conducted by the school’s administration. The other type was the informal observation of a teacher’s lesson. The informal observation had 4 characteristics which were: (1) The teacher was not informed by the administrator/observer-to-be as to what day/time he/she will be observed; (2) There was no pre-observation conference before the observation; (3) No “lesson plan review” was held before the observation; (4) The teacher did not know which subject he/she would be teaching when the observation happened. Spanning the 3 charged years, the following observation reports were described by the respective administrators/observers as informal: D16, D17, D49, D2, D46 and R2. With respect to all 6 of the informal observation reports which were just listed and characteristic #3 above – no “lesson plan review” was held before the observation – the correct conclusion is obvious. The conclusion is that the department’s “lesson plan review” as a form of remediation was absolutely invalid with respect to all 6 of the administration’s informal observations of the Respondent’s teaching. To sum up, the Department of Education’s “lesson plan review” constituted invalid remediation because of 7 reasons, which were (1) Exhibits D32, D57, D58, D39, D37 and D45 indicated no evidence that there was a genuine attempt at “lesson plan review” to benefit respondent; (2) The 10 formal observation reports spanning the 3 charged years indicated no evidence that there was a genuine attempt at “lesson plan review” to benefit respondent; (3) The 6 informal 25 observation reports spanning the 3 charged years indicated no lesson plan review at all for the benefit of the respondent; (4) During the 3020a proceedings, the Department of Education presented no batches of lesson plans (or copies thereof) as evidence that it had reviewed respondent’s handed in lesson plans and returned them to him. (It should be noted that the respondent handed in his lesson plans on a weekly basis to a supervisor/administrator as required by plans of assistance (D57). The lesson plans were in batches because there were more than 20 lessons to be taught per week.); (5) During the 3020a proceedings, there was no testimony that indicated that a school administrator reviewed the respondent’s lesson plans with respondent present. This contradicts the hearing officer’s statement to the contrary. (Hearing officer’s Decision p. 113 or respondent’s Appendix p. 118.); (6) During the 3020a proceedings, no documents indicated a genuine attempt by the school’s administration to review Respondent’s handed in lesson plans; (7) During the 3020a proceedings, there was no testimony that indicated that a school administrator reviewed the respondent’s lesson plans and returned them to respondent. The respondent maintains that the hearing officer’s conclusion that the Department of Education’s lesson plan review constitutes valid remediation is not true – it in fact was invalid. (Hearing Officer’s Decision p. 114 or respondent’s Appendix p. 119.) This following section will contain points and corresponding comments. Every point/comment will discuss either of two remedial programs “PIP” or “PIP Plus.” Point #1 will be indicated as (Point 1). The next paragraph will contain the comment that corresponds to point #1 which will be indicated as (Comment 1). The comment may consist of one or more paragraphs. After the comment paragraph(s) end(s), the following paragraph will indicate Point #2, which will be indicated by (Point 2). This pattern continues. (Point 1) According to Education Law 3020a(4), remediation must be considered before a penalty is awarded as the result of 3020a proceeding. (Comment 1) A similar wholesome and just attitude is indicated in the 10/13/2007-10/31/2009 Agreement between The Board of Education of the City School District of the City of New York and United Federation of Teachers, Local 2, American Federation of Teachers, AFL-CIO covering 26 Teachers. Pages 121-122, Section I. Peer Intervention Program (PIP) of this Agreement says: “The Board and the Union recognize that instructional services should be delivered by a highly qualified and motivated staff, accorded the respect and professional treatment to which they are entitled. Towards that end the Board and the Union have agreed to provide resources and peer assistance on a voluntary confidential basis to staff who have completed probation and who believe that their teaching competence will benefit from that assistance in the manner provided below: “1. The Peer Intervention Panel shall be composed of nine members. 2. This Panel will … select interveners. 5. Any teacher who has a reasonable basis for needing such assistance and/or receives a U-rating (unsatisfactory-rating) or formal warning may request assistance from the Peer Intervention Program, in writing on a form promulgated by the Panel. 6. The intervener will develop a plan to assist the participating teacher tailored to the specific needs of that teacher and will work with the teacher directly for not more than one year. 7: For three months following the start of the intervention period, supervisors will not evaluate or observe the participating teacher. 10. Except as otherwise herein provided, the Union, the Board or any participating teacher may exercise any constitutional, statutory, regulatory or contractual right otherwise provided by law, regulation or contract.” Despite the fact that the respondent was entitled to “PIP” remediation because of having received a rating of unsatisfactory for the first charged school year (2008-2009), neither the school’s administration nor the UFT provided respondent with the Panel’s form (indicated just above) with which the respondent would have requested assistance from the Peer Intervention Program. Through inaction and silence, the school’s administration and the UFT denied respondent his right to possibly an entire year of remediation through the Peer Intervention Program (“PIP”). The respondent did not know that “PIP” existed because he never needed it in his long and successful teaching career. Had respondent known that “PIP” existed he would have participated in a heartbeat (as he did when informed of the PIP Plus Program of remediation on 10/14/2010 as per D26). This denial of much-needed remediation turned out to be extremely unfortunate for the respondent. 27 Page 23 of Section 2 of the Law Department’s brief says that the arbitrator has “sound reasoning.” The arbitrator in his Decision said that the purpose of PIP Plus is remediation. This is not true. The purpose of remediation is success, not remediation. This is not sound reasoning by the arbitrator. (Point 2) The purpose of a remedial program is to fix a problem or problems. In order to properly evaluate the effectiveness of a short program of remediation – such as the eleven session, 3-month remedial program called “PIP Plus” – which the respondent participated in in the 3rd charged school year (2010-2011) – the respondent had to have been evaluated after the program was completed on 4/15/2011 (this is a fact as per the Agreement cited above). (Comment 2) 4/15/2011 was the date when the remediation program ended. The respondent was supposed to have been evaluated by the school’s principal after 4/15/2011. This lack of follow-up evaluation of respondent after 4/15/2011 by the school’s administration, defeated the purpose of the outside, remedial program called the PIP Plus Program. The purpose of the PIP Plus Program is indicated in the Agreement cited above which is “A new program (PIP Plus) will be created for tenured teachers in danger of receiving charges pursuant to section 3020a for incompetence, which will be staffed by independent consulting teachers. Consulting teachers in the PIP Plus will develop plans to assist the participating U- rated tenured teachers, tailored to the specific needs of the teachers.” (See Agreement, p. 123, section J. Peer Intervention Plus Program (“PIP Plus”), paragraphs 2 and 3.) Accordingly, the purpose of the PIP Plus Program was to afford the respondent a final chance to succeed and avoid 3020a charges. In addition, the administrator of the PIP Plus Program, DE, indicated in his testimony that that was the purpose of the PIP Plus Program (Tr. 1814, 1815). The PIP Plus peer observer, DE, said in his sworn testimony that the goal of PIP Plus was to enable the respondent not to get unsatisfactory ratings. Specifically, the peer observer of the PIP Pus Program was asked: “Do you know if the teachers have to agree to participate in the Peer Plus Program (meaning PIP Plus Program)? A. Yes. It’s a voluntary program. They are informed they are in danger and it’s an opportunity for them to improve their teaching 28 methods and hopefully, move to the point where they don’t get the unsatisfactory ratings from their supervisors.” (Tr. 1165 and 1166) The Agreement cited above states the following: “The parties (meaning the Board of Education of NYC and the United Federation of Teachers) agree that in the spirit of progressive discipline, rather than necessarily charge an employee with incompetence, an employee who receives an unsatisfactory rating for the first time may be offered the opportunity to enroll in the Peer Intervention Program (“PIP”) for a term of one year.” “The parties further agree that during the first school term of the intervention, no formal observations will be made. During the second school term, although the employee will still be in the PIP, the administration is free to conduct observations and to rate the employee accordingly. Since the end-of-year rating will be based on these observations, a minimum of two (2) observations shall be conducted during the second term.” The school year includes 2 terms, as the Agreement above says. The school year is 10 months (September, usually, to June). Each term is approximately equally as long – 5 months. So, as per the Agreement above, when the employee is in the “PIP” he/she will not be observed for the first term which is 5 months. By implication, the respondent who participated in the PIP Plus Program, which afforded only 3 months (10 sessions) of remediation, was to be observed by the school’s administration (according to the agreement above) only after the 3- month, ten session remediational period by the PIP Plus program was completed on 4/15/2011, and not during the remediational period. (Point 3) According to the Agreement cited above and the administrator (DE) of the PIP Plus Program, the goal of the PIP Plus Program was to remediate respondent’s teaching needs, which had previously been determined by the school’s administration. The purpose of this was to sufficiently prepare respondent for a final chance to succeed and therefore avoid 3020a charges. The respondent’s success or lack of it was to be evaluated by the school’s administration by conducting a minimum of 2 lesson observations of the respondent, which corresponding observation reports would rate. The lesson observations would be conducted after the PIP Plus Program’s remediation was completed, which turned out to be on 4/15/2011. (The fact that more than 2 months remained in the school year to conduct the 29 observations was more than sufficient time to do so.) (Transcripts 1814 and 1815 of February, 2012, sheet 22.) (Comment 3) Despite the crucial importance of the goal of the PIP Plus Program, with respect to the Respondent’s teaching career, neither the school’s principal nor anyone else from the school’s administration ever observed any of the Respondent’s lessons after the remediation of the PIP Plus Program ended on 4/15/2011. (Point 4) By not observing the respondent’s teaching at all after 4/15/2011, the school’s principal, and the school’s administration in general, denied the respondent his right as per the Agreement cited above, to have a final chance to succeed. Success would have been reflected in a year-end rating of satisfactory. A 2010-2011 year-end rating of satisfactory would have resulted in the respondent’s avoidance of 3020a charges. (Comment 4) This denial of the Respondent’s right to very possibly succeed and not be terminated is ground to overturn Respondent’s termination. (Point 5) The hearing officer, in his Decision (report), demonstrated bias against the respondent via omission. By not indicating the goal (Point 3) and purpose of the PIP Plus Program as per the Agreement cited and the PIP Plus Program’s administrator/peer observer, the hearing officer covered up the fact that the school’s administration violated the Agreement cited above. The hearing officer showed additional bias against respondent because he didn’t report the fact that the school’s administration bilked the respondent out of a final chance to succeed, avoid 3020a proceedings and termination. This bias by the hearing officer which went against respondent resulted in the Respondent’s unfair termination. (Comment 5) According to education law 3020a, bias on the part of a hearing officer which adversely affects the respondent (for example) is illegal. According to the law, the hearing officer is required to be neutral, not biased. 30 (Point 6) The peer observer/administrator of the PIP Plus Program, DE, undermined the goal and purpose of the PIP Plus Program (which is Point 3 above). He did this by creating a 2-month gap between two visits. This violated proper protocol of the PIP Plus Program (Tr. 1990, 2/27/12, sheet 15). (Comment 6) The peer observer (DE) of the PIP Plus Program observed respondent on 1/7/2011 (D89- observation report #4 by the peer observer, dated 1/7/2011). His next visit was an observation on 3/14/2011 (D90- observation report #5 dated 3/14/2011). The 2-month gap between visits undermined the goal and purpose of the PIP Plus Program because the remedial period was completed on 4/15/2011, which was 2 months later than it should have been. On 4/15/2011, the peer observer issued his 6th/final observation report to respondent (D91). This late-date of completion of PIP Plus, 4/15/2011, meant that the school’s administration had 2 fewer months during which it could observe respondent. This was unfair to the respondent. (Point 7) The PIP Plus Program’s peer observer, DE, defeated the purpose of the remediation of the PIP Plus Program by not seeing to it that respondent be observed by the school’s administration after his remediation concluded with his issuance of his 6th/final observation report re: respondent on 4/15/2011. (Comment 7) As per the record, the Respondent in fact was not observed by the school’s administration (or anyone else) after 4/15/2011, despite 2 months remained to do so. This eliminated Respondent’s final chance to avoid 3020a charges and possible termination (which happened May 2012). (Point 8) Since the respondent was not observed by the administration after the remediation of PIP Plus ended on 4/15/2011, this inaction invalidated the remediation of the PIP Plus Program. (Comment 8) Because the remediation by the PIP Plus Program was invalidated by the school’s administration, the hearing officer was incorrect in his conclusion that the PIP Plus Program was a valid program of remediation (see Hearing Officer’s Decision, p. 131 or respondent’s Appendix p. 136). 31 (Point 9) The PIP Plus Program (which respondent participated in the 2010-2011 school year) was an invalid program of remediation for the respondent. (Comment 9) The PIP Plus Program was an invalid outside program of remediation, due to the following three reasons, which are enumerated: (1) The PIP Plus Program’s peer observer, DE, did not address the respondent’s primary core need, as previously identified by the school’s administration in five observation reports (D2, D3, D45, D46 and D47), which was for daily, individualized training whereas DE and respondent would work cooperatively for twenty consecutive school days in order to create the 40 lesson plans (20 for the reading workshop and 20 for the writing workshop lessons) which would have enabled the respondent to completely and satisfactorily teach a particular month’s genre (unit of study) for reading/writing. By not addressing respondent’s primary and core need, the peer observer violated the 10/13/2007-10/31/2009 Agreement between the Board of Education of New York City and the United Federation of Teachers, which stated that “Consulting teachers in the PIP Plus will develop plans to assist the participating U-rated (unsatisfactory-rated) tenured teachers, tailored to the specific needs of the teachers” (10/13/2007-10/31/2009 Agreement Section J, Peer Intervention Plus Program (“PIP Plus”), paragraphs 1 and 2). (2) The peer observer did not satisfy at least 2 out of the 5 standards of validity that an arbitration panel deemed as necessary for the delivery of a valid educational experience to a student, as per the Board of Education v. Arrak case of 1988. While the respondent was participating in the PIP Plus Program, the “teacher” was the peer observer, DE, the “student” was the respondent. DE, the peer observer, did not have knowledge of the subject matter content which were the administration’s curriculum calendars in reading and writing. (See the top dot “skill” of Hearing Officer’s Decision p. 133.) Nor did DE demonstrate the ability to communicate content facts (second dot “skill” p. 133 of Hearing Officer’s Decision). Therefore, the remedial program called PIP Plus was not valid for the respondent. 32 (3) The peer observer, DE, violated the 2007-2009 Agreement cited above by not requesting that the school’s administration evaluate respondent after the program’s remediation was completed on 4/15/2011. This timely and critical evaluation and then rating respondent were not done as per the record. This timely and critical evaluation was implied as necessary by the 2007-2009 Agreement cited above (see Agreement, p. 121, Section 9. Incompetence Cases) (Tr. 1990, sheet 15, 2/27/2012). This mishandling of the PIP Plus Program by the peer observer, DE, defeated the purpose of the program which was to give respondent a final chance to avoid 3020a charges by being observed at least twice by the school’s administration after the PIP Plus Program’s remediation is completed on 4/15/2011. In addition, the respondent’s end-of-year rating would be based on the observation reports issued after completion of the remediational program. Fact 1 – As per the entire record, neither exhibits such as observation reports nor witnesses for the Department of Education ever states that the respondent had received daily help with lesson planning for a period of at least 5 days, for example, which would have been very inadequate. Fact 2 – The respondent has taught satisfactorily in the New York City Public Schools system for a total of 19 years, 8 months and 10 days. (Proof would be furnished upon the Court’s request.) Fact 3 – The hearing officer demonstrated bias against the respondent by unfairly and inaccurately labelling most remediation of respondent as valid, even though it clearly was invalid, because of being irrelevant to respondent’s instructional needs as per observation reports D2, D3, D45, D46 and D47. Fact 4 – The goal of the remediation of the PIP Plus Program was to remediate the respondent according to his lesson planning needs which were indicated in administratively-issued observation reports D2, D3, D45, D46 and D47. Fact 5 - In his Decision (report), the hearing officer omitted the fact that the school’s principal unfairly denied the respondent his right to a final chance to earn and receive a school year-end rating of satisfactory – the purpose of which was to avoid 3020a charges. The school’s principal 33 denied respondent his final chance to avoid 3020a charges by not observing respondent at all after the remediation of the PIP Plus Program was completed on 4/15/2011, despite having over 2 months remaining in the school year to do so. The reason why the respondent should have been observed at least twice after the remediational period of PIP Plus was completed on 4/15/2011 is given in the 2007-2009 Agreement between the Board of Education of New York City and the United Federation of Teachers which says: “The Parties further agree that during the first school term of the intervention no formal observations will be made. During the second school term, although the employee will still be in the PIP (Peer Intervention Program), the administration is free to conduct observations and to rate the employee accordingly. Since the end-of-year rating will be based on these observations, a minimum of two (2) observations shall be conducted during the second school term” (10/13/2007-10/31/2009 Agreement between the Board of Education of the City of New York and the United Federation of Teachers, p. 121, section 9. Incompetence Cases). The school year is comprised of 2, 5-month school terms and extends from September (usually) through June. According to the Agreement above, the respondent should have been observed after the 3 month, eleven session PIP Plus Program of remediation was completed on 4/15/2011 (as it turned out). Even though the discussion above speaks of the scenario of PIP remediation, instead of PIP Plus remediation, common sense dictates that it doesn’t matter because they are both remedial programs. This omission of the unfair treatment by the school’s principal of the respondent in the hearing officer’s Decision (report) constituted bias on the part of the hearing officer which went against the respondent. This was so because the hearing officer, via his deliberate omission, eliminated the respondent’s right to have a final chance not to be terminated. This bias by the hearing officer, which went against the respondent, is ground for overturning the respondent’s termination according to Education Law 3020a. Accordingly, the respondent’s termination should be overturned. Fact 6 – Via silence, the school’s administration and the UFT denied respondent a possible year’s worth of remediation in the PIP Program in September, 2009 after respondent was rated as unsatisfactory for the 2008-2009 school year. 34 Fact 7 – The PIP Plus Program was invalid as a source of remediation for respondent because the peer observer’s recommendations in observation reports D86, D87, D88, D89, D90, D91 had nothing to do with the respondent’s primary, core need which was for daily assistance with lesson planning from the curriculum calendar in literacy (reading and writing) – and lesson planning from other source-documents as well, such as textbooks, etc. for non-workshop lessons. Fact 8 – Respondent should have had a general classroom paraprofessional to assist him, but was never assigned one, even though he needed one for the 2008-2009 and 2009-2010 school years. One reason for the need was that the class had emotionally disturbed students (as per supervisor SS’s testimony (Tr. 708). Fact 9 – Every student of the respondent was promoted yearly by the head of the special education department, AG. This indicated that at the very least, respondent’s students met the minimum standards for promotion. Fact 10 – Another form of remediation that the hearing officer claimed as valid was the plan of assistance. The following items were in each plan of assistance: (1) weekly collection of lesson plans; (2) the respondent observing another teacher, namely RS; (3) the respondent being observed by administrators; (4) the respondent attending workshops; (5) regularly-scheduled meetings with Assistant Principal YP. The respondent did give in his lesson plans to the designated administrator, however, the administrator, no matter who it was, did not review the plans with the respondent nor did he/she review the plans and return them to respondent. There is neither evidence nor testimony to contradict this. The administration arranged for 2 observations by respondent of teacher RS. RS gave respondent no lesson plan and obviously had no time to assist him at all – and did not. The respondent was observed by administrators – the 16 observation reports are the evidence. However, as indicated above, none of the 16 observation reports indicated that the respondent had received or was receiving hands-on assistance of 20 days to create 40 satisfactory lesson plans so that respondent could completely and satisfactorily teach a particular month’s genre (unit of study) for reading/writing. This primary, core need was indicated in observations D2, D3, D45, D46 and D47. The respondent 35 went to 1 or 2 workshops at a college. The workshops had nothing to do with respondent’s need that is reiterated above. The workshops were lectures involving about 200 teachers. There was no individualized tutoring. Respondent asked about individualized tutoring but was told that that wasn’t done. Occasionally there were meetings with YP. However, they were sporadic, very short (10-15 minutes), and never involved YP taking any time to tutor respondent with respect to his primary, core need in lesson planning from the curriculum calendars of literacy. She told respondent that that was the ELA staff developer’s (AR’s) job. Fact 11 – Very significantly, no plan of assistance included remediation of respondent’s primary, core need in literacy by the English Language Arts (ELA) staff developer AR. Fact 12 – Assistance of Respondent by Assistant Principal YP was declared as valid remediation by the hearing officer. She modeled a lesson once and did a follow-up observation of respondent. This resulted in a satisfactory-rated observation (R2). Although YP promised to meet with respondent to answer his questions, she did so only sporadically and very briefly and sometimes after school hours. Fact 13 – Another form of so-called remediation that the hearing officer claimed as valid was the “lesson plan review.” The hearing officer cites the following exhibits by the Department of Education as evidence that the respondent’s handed-in lesson plans, done on a weekly basis, to the school’s administration were reviewed and discussed with respondent: D32, D57, D58, D37, D39 and D45. Based on this so-called “evidence” the hearing officer concluded that the department’s lesson plan review constituted valid remediation (Hearing Officer’s Decision pp. 113-114 or respondent’s Appendix pp. 118-119). If one carefully reads the 6 exhibits cited above (D32, D57, D58, D37, D39, D45), it is clear that there is not a shred of evidence that indicates that the respondent’s handed-in lesson plans, done on a weekly basis, were reviewed and discussed with the respondent. It is also clear that the respondent’s weekly lesson plans were not returned to the respondent, whether they were received or not. The fact is that the respondent’s handed-in lesson plans, on a weekly basis, 36 were never reviewed with respondent. The other fact is that those lesson plans, or copies thereof, were never returned to respondent. Earlier in this Brief, respondent discusses “lesson plan review” in greater detail. Based on lack of any evidence to the contrary, the conclusion is obvious. Importantly, the Department of Education presented no exhibit that was comprised of corrected or reviewed lesson plans, or copies thereof, that the respondent had handed-in to the school’s administration on a weekly basis. Since the respondent’s handed-in lesson plans, done on a weekly basis, were never reviewed and discussed with respondent and the plans or copies thereof were never returned to respondent, whether they were reviewed or not, the fact is that the Department lesson plan review constituted invalid remediation – this contradicts the hearing officer’s conclusion. Respectfully submitted, _____________________________ Anthony J. Russo Petitioner/Respondent