NYC EYE: Francisco Portelos' Case and Relevance To All Teachers

Wednesday, September 11, 2013

What the Portelos case means for all NYC teachers

                   *Relevance for Danielson observations under "Advance"

LINK

Ravitch and Lewis

 
This week has some matters of importance to New York City teachers. Besides the Democratic primary for mayor, it has the termination hearing of Francesco Portelos. The matter of the Portelos case is an instance of reality being more cinematic than fiction.

For those that do not know the Francesco Portelos case: he was the model recruit, coming from a successful engineering career--taking a $20,000 salary reduction in the move to public school teaching, and wanting to share his knowledge and enthusiasm with students. As a teacher he set up a special STEM lab and had glowing reviews from his supervisors.
Flash forward to his time teaching science in a middle school. All that he did was ask an innocuous question in the School Leadership Team (one positive structure in the current Bloomberg --when it is handled by administrators with scruples) meeting about the school budget. From there he was able to find more and more complicating, suspicious details about how the principal was running the school. For deeper details read Educator Fights Back (his blog) and NYC Rubber Room Reporter and ATR CONNECT.

Almost immediately, Portelos was subject to all kinds of actions by school administration, actions that evinced general paranoia, over-reaction and flagrant abuse of power. He was denied all kinds of due process, such as habeas corpus (granted, he wasn't jailed).

Merely asking a question, a responsible got Portelos into a deep process of institutional retribution.

This case has significant ramifications for New York City teachers for the following reasons:
1) If the city prevails it will further indicate that this is a vindictive system, even towards an employee acting merely with the actions of good citizenship.
Moreover, a termination decision, sustaining the city's position, will have a far deeper chilling effect on the likelihood that teachers will feel free to speak, it will sustain the climate of repression, reinforcing the feeling among many teachers that this is an authoritarian regime. Not everything changes 1/1/14. The mayor changes, but your principal remains the same.
2) The general abandonment of the United Federation of Teachers (UFT) regarding helping Portelos in a serious manner demonstrates that the UFT is far too often just interested in going along with the city Department of Education (DOE) to get along. This case makes very clear that contrary to the media hoopla in 2010, the rubber rooms did not disappear. Merely, the large ones disappeared (an honest account of the closure of the large rooms can be found here), and they became very small, like solitary confinement.
3) Of prime relevance to teachers in the Danielson era: it shows that when administrators want to target you, they will do so, and do so with exacting impunity. Danielson exploitative will happen in the following manner: administrators will fly in, expect compliance along 22 domain components, including observers' assessments of  students' body language. Aside from the veneer of fairness, the system is riddled with openings for administrators to practice bias. The Framework makes assumptions about the teacher's impact on the class that ignore other factors that could contribute to student engagement, cooperation and learning.
Refer back to 2)-- the UFT left Portelos to hang on his own. Again this was a star teacher with no disciplinary letters prior to the witch-hunt treatment. If the UFT abandons a stellar teacher thrown into the new solitary confinement rubber room on trumped up charges, you can bet that it will abandon thousands more in the 3020(a) hearings from the Advance evaluation system (analyzed here and here).

Portelos' 3020 hearings are on September 12, 23, 30 at 49 Chambers Street, Manhattan.

UPDATE: Portelos has reported his receipt of damning 3,000 pages of secret DOE emails. 
Porteles Monday -ahead of Thursday first of his 3020(a) hearings- received a CD of over 3,000 NYC Department of Education emails on him. The abuse of his dignity and the flagrant denial of his constitutional rights of due process are one thing. Yet, as he notes, the neurotic obsession by the DOE about him constitutes a blatant exploiting of taxpayer dollars. Read this beginning excerpt of his blogpost: 

Anyway, my attorney gave me this CD he received from the NYC attorney defending the city in my Federal case. We opened it, made copies and saved them (on servers around the world.) It contains approximately 3,088 pages of emails to and from Principal Linda Hill and Superintendent Erminia Claudio’s DOE accounts with the word “Portelos” in it from January 2012 to June 2013 plus other items. That includes when they were just copied. 

Let me just start with Wow! You thought the Cathy Black emails were interesting? I started backwards and only got through 1/5th and am absolutely floored. I’m not sharing any just yet, but let me make some quick points that should make taxpayers and parents upset as well as the students who lost out. 

- The amount of man-hours and resources that went into trying to “get me” is ridiculous and appalling. 

- Deputy Chancellor of Operations Kathleen Grimm is copied a lot and weighs in. To help alleviate the situation? No. The first time I heard of her was at a Panel for Educational Policy (PEP) school closure meeting and some audience member yelled out “Boooh.. Grimm Reaper!” That’s not polite I thought. I was then informed that she closes down schools. 

- Deputy Chancellor Shael Suransky is in the emails as well. 

- There are times when “they” got wind that I would be present at a public event, speaking out and actually upped security. What? Harmon Unger, Frank Jordan and the Office of Safety and Youth Development was on the case. I thought it was odd to see the guys in suits with wires in their ears. Now it makes sense that they kept an eye on me while I sat in the back of the Petrides auditorium. 

-The words “he’ll stop at nothing” and “he is relentless” were used by many. It’s funny, because I was talking to a teacher at my school and said “Remember when I first came to IS 49 from the environmental field? I was this scrawny guy running around helping out with tech issues and staying late and weekends?” She replied “I was thinking that. Look what they have created, but what choice did you have? You’re up against an army and they don’t know what to do. It’s ridiculous! ” 

-David Brodsky of Labor and Relations, Kelly Doyle of ATU, Karen Solimando.

- Several UFT members, within the building, helped with the demise of the great atmosphere we once had. We knew this, but the amount of teachers and paras who were emailing the principal my chapter leader notices is crazy. Some were not involved in my case at all, but I guess they wanted to ensure a Satisfactory rating. Another reason the teacher evaluation is going to be subjective. “Keep giving me info and you’ll get rated Highly Effective. 

- I’m under even MORE investigations than I thought. Have lost count, but somewhere around 34. Lol. Great job SCI and OSI…ignore my evidence backed complaints and investigate magazine subscriptions. Yes apparently my principal was getting Playboy subscriptions and she reported that I subscribed her. You can’t make this stuff up. 
. . .
Update: With less than 24 hrs before my termination hearing, SCI investigators visit my mother in law & play with my kids. Desperate? I believe so.

[Emphasis, added.]
And that is just the beginning of the vindictive madness, all at the expense of you New York City taxpayers. Accountability, my foot.
Go to Porteles' blogsite for the full post on this wild trove of Kafkaesque bureaucracy run-amok: "3,000 Pages of Secret DOE Emails. [Deputy Chancellor Kathleen Grimm Enters Stage Left]" 

A modern day Frank Serpico, only this one, Portelos, was banished in often solitary confinement to the rubber rooms that themaster of disinformationUFT president Mulgrew said were closed three years ago. Yes, public, know a teller of disinformation (Mulgrew) by the company he keeps (candidate Thompson) -read here andhere, here, here, here. 

Portelos' hearings are public: on September 12, 23, 30 at 49 Chambers Street, Manhattan.

On a related note, we must show solidarity with an anti-judicial corruption whistleblower, Sun-Ming "Sunny" Sheu, murdered in 2010. Read "The Death of Sunny Sheu" --Truth-Out called the New York Police Department's Own Trayvon Martin Case, and these other reports, at DailyKos and a local blogger's repository of info re Sunny Sheu. [I knew Sunny and wrote about his mission and death on my website Parentadvocates.org - Editor Betsy Combier] The writer of Truth-Out's "The Biggest NYPD Scandal in Decades: Murdering of Sunny Sheu" called this case "the New York Police Department's Own Trayvon Martin Case." 
BILL THOMPSON'S COLD, TECHNOCRATIC DISINTEREST --merely, your time is up-- TO TESTIMONY REGARDING SHEU should send shivers through the spine of people already concerned with how Thompson has a history of political self-aggrandizement, yet no passionate commitment to principles in his general political life. See this video of Thompson presiding at hearing in question:https://www.youtube.com/watch?v=RWivhbIVgMU

With 3 Months Left, Bloomberg Admin Has No Plan to Save Many City Emails

Bloomberg Administration Plans Email Purge

LINK 

By James Fanelli on September 17, 2013 6:58am | Updated on September 17, 2013 6:58am

@fanellijames

The Bloomberg administration could let an important part of its legacy end up in a digital Dumpster.

Currently, the city only has plans to retain the emails of a finite number of agencies from the Bloomberg era — and those are mainly being saved to protect itself in the event of future litigation, DNAinfo New York has learned.

But the city still hasn’t decided whether to preserve the emails of major agencies like the mayor's office, NYPD, the Department of Education and FDNY, sources said.

If the emails are not saved, an unvarnished window into the decision-making and thoughts of Mayor Michael Bloomberg and top deputies like Schools Chancellor Dennis Walcott and NYPD Commissioner Raymond Kelly could vanish.

When DNAinfo New York asked the mayor's office and the city Law Department about the possibility that these agencies' emails would eventually disappear, both called that account "incorrect and inaccurate" but wouldn't elaborate.

They also said that an email retention plan has not been finalized.

What to do with the city's copious emails from the past decade became the topic of a presentation that Larry Kahn, the city Law Department's chief litigating assistant, delivered to multiple agencies late last year, sources said.

In his talk, he explained that certain agencies’ emails may not be preserved, according to sources.

DNAinfo New York asked under the state's Freedom of Information Law for copies of memos and documents connected to the Law Department’s email retention presentation. The Law Department denied the request, citing attorney-client privilege, but acknowledged that city lawyers had met to speak about the issue.

However, DNAinfo New York learned that Kahn’s presentation discussed recent legal decisions where an institution was found liable for retaining emails for a certain period in case they are relevant to future litigation.

For that reason, the city plans to retain the emails of the Administration for Children’s Services, the Department of Buildings, the Law Department, the Office of Collective Bargaining, the Department of Aging, the Office of Administrative Trials and Hearings, the Business Integrity Commission, the Parks Department, the Department of Youth and Community Development, the Department of Probation, the Department of Small Business Services, the Department of Citywide Administrative Services, the Department of Consumer Affairs and smaller agencies.

The Department of Information Technology & Telecommunications currently hosts these agencies’ emails on its servers. The city Law Department is still formalizing a plan for how long to keep them and where, but it has floated three scenarios.

Under one scenario half of these agencies' employees — including top brass and managers — would have their emails retained for 30 years. The other half of employees would have their emails saved for five years. This retention plan would cost the city $83 million over 30 years.

In a second scenario, 10 percent of these agencies' employees would have their emails preserved for 30 years. This category would again include agency brass and top managers. The city would keep the emails of 40 percent of these agencies' employees for 15 years. The remaining 50 percent employees would have their emails saved for five years. It would cost the city $56 million over 30 years.

Under a third plan, 25 percent of employees would have their emails retained for 30 years. Another 25 percent would their emails saved for 15 years. The remaining 50 percent would have their emails preserved for five years. The total cost would be $66 million.

With four months to go, the city hasn't decided whether to retain the emails of other agencies, sources said.

On Monday evening, an agency spokeswoman issued a statement from Kahn:

"The city is always examining resource management issues," it said.

"In that context, DOITT and the Law Department have discussed the retention of e-mails in light of practices recognized by the federal rules of civil procedure, the federal government, many businesses, and the Sedona Conference, a leading legal organization comprised of judges, lawyers and other experts in the field. 

"No new policy has been adopted or decided upon, and your description of discussions that have been had is incorrect and inaccurate."

Good government groups told DNAinfo New York that the emails should not be discarded under any circumstances — rather they should be a part of the city’s Municipal Archives, which traditionally preserves the papers and documents connected to a mayor’s administration.

“Any city employee, if while they're on the job, and they're writing letters — or in this case emails — and it's in the business capacity as a city employee, that shouldn't be purged,” civil liberties lawyer Norman Siegel said. “That's public information. In due time, the people of New York should know what business has been.”

Siegel was part of a 2002 battle with Bloomberg’s predecessor, Rudy Giuliani, who after leaving office transferred his mayoral papers to a nonprofit he controlled rather than follow the usual protocol of handing them directly to the city’s Municipal Archives.

At the time, Giuliani said he was personally paying for a private archival firm to catalog the documents quickly.

Siegel and scholars charged that he was sanitizing the historical record of his administration by winnowing out blemishes. They threatened legal action and held protests demanding he return the papers to the archives. Eventually, the Giuliani documents were transposed to microfilm and delivered to the city archives.

“What's troubling is that this is sort of déjà vu,” Siegel told DNAinfo.

Bob Freeman, the executive director of the state's Committee on Open Government, said the public generally has the right to obtain government emails under New York's Freedom of Information Law.

"Typically, email communications involving government ... would constitute agency records that fall within the Freedom of Information Law," Freeman said.

He added that government emails deserve a shelf life before they're destroyed.

"We cannot simply destroy or dispose of records," he said. "We have to maintain records for various periods of time that relate to a retention schedule."

GothamSchools Looks at The New Evaluation System and "Lumping" Teachers Together

Instead of telling teachers apart, new evals lump some together

by Geoff Decker and Philissa Cramer, at 7:43 am

Dennis Walcott talks to teachers over the summer

LINK

Related Stories

Bloomberg: City will aggressively push teacher evals to parents  June 22, 2012 20

Citing poll, NYSUT pushes for limited role of test scores in evals   February 9, 2012 6

NYC’s evals include scoring fix that districts lacked this year  July 3, 2013 17

From Cuomo’s office, a chart showing NY’s evals are just right   February 17, 2012 24

Under pressure, Tisch signals a concession on teacher evals   June 11, 2013 5

A Bronx performing arts school’s dance instructor will be judged on students’ English exam scores. Physical education teachers at a transfer school in Brooklyn are going to teach Olympic history lessons to prepare students for the history tests that will help determine their ratings. And teachers in Queens are putting the fate of their evaluations into a final exam that they don’t teach, but yields high pass rates.

The scenarios are not unusual — across the city this year, thousands of teachers will be rated in large part based on test scores of subjects and students that they do not teach.

Rather, the scenarios are examples of how schools have tried to comply with a new teacher evaluation system that must factor student performance into final ratings. They also represent how the original purpose of the evaluations, to differentiate teachers’ effectiveness, has been squeezed by restrictive state laws, limited resources, and a tight timeline for implementation.

“It’s insane to me that 40 percent of my evaluation is going to be based on someone else’s work,” said Jason Zanitsch, a high school drama teacher who will share the same “student growth” score with colleagues in his school this year.

An incomplete evaluation system, implemented rapidly

Sixty percent of teachers’ ratings this year will come from observations by administrators. The state’s evaluation law mandates that the remaining 40 percent come from a combination of state tests and assessments chosen by each district, whose scores are all crunched to determine student growth.

But neither kind of test exists for Zanitsch and other drama teachers, at least this year. They are among the thousands of city teachers for whom the state has not approved any way to measure student learning. They include librarians, 5,000 physical education and arts teachers, and others who teach foreign languages, health, and career education.

New York City principals had until the first day of school last week to choose from a menu of limited options,first made available in early August, for evaluating their teachers on student growth. Principals and teachers told GothamSchools that their schools have picked a ”default” option in which all teachers — even core subject teachers — will receive the same score cobbled together from all of the state tests taken in the school.

“What we are advising most of our schools and principals this year is since the principal’s rating is based on how their school collectively is doing, just take the default, especially since it means the minimum of extra work and testing for everyone,” said a person who works in a network with many high schools.

The arrangement has drawn a lawsuit in Florida and criticism from dozens of city principalswho last week pledged not to help execute it. But in lieu of state-approved assessments for all subjects, officials say rating teachers by their colleagues’ scores is the best option available until more credible alternatives can be developed.

“If the legislature had wanted us to be fully compliant at the outset, they would have put in place a massive funding program to support assessments to support every single subject,” said Shael Polakow-Suransky, the Department of Education’s chief academic officer. “But they decided to have a statewide evaluation system in place and then to build it from there.”

Looking on the bright side

Some principals and teachers say the arrangement could have benefits.

“It absolutely encourages collaboration,” said Vinnie Zarillo, a social studies teacher at Brownsville Academy High School whose students’ scores will influence the school’s physical education teachers’ ratings as well as his own. He said he is already talking to his colleagues about how to add lessons to P.E. classes about athletics’ role in world history.

Theatre Arts Production Company Principal Ron Link, whose teachers will be rated using results from the English Regents, said the school-wide approach meshed with how teachers already worked together on the school’s end-of-year theater productions. But Link also wondered if eventually it could lead the curriculum to narrow.

“Is it teaching to the test? I don’t know,” Link said. “I think we’re lucky here at TAPCO because we were already doing the infusion part with arts teachers working with the English and the social studies teacher on the production.”

Concerns about testing’s role

But the silver lining doesn’t sit well with everyone who has been told to look for it.

“I want my art teacher to teach students to make and analyze art. I don’t want them to teach mathematical modeling. That’s why I have a great algebra teacher,” said a Brooklyn high school principal, who asked to remain anonymous because she did not want to criticize the evaluation system publicly. The principal added, “The best that I can see coming out of this is that no harm is done.”

“The administration is saying it is teamwork and we are all in this together, but I don’t feel comfortable being graded based on how the other teachers in my school [are] preparing students for their tests,” a forensic science teacher told GothamSchools.  The teacher, who said her evaluation will be partially based on her students’ Living Environment Regents exam scores, requested anonymity because she feared retribution.

Department officials concede that the situation is far from ideal but say it’s the best they could have done under the state’s timeline for implementing the new evaluation law. Polakow-Suransky suggested that teachers could find solace in the fact that the city did not introduce more required tests, as some had worried that the new evaluation system would do. But he also noted that several schools are piloting arts assessments funded by federal grants and signaled that schools could have the option to add tests in the future.

“We’re not going to go out and invent a bunch of multiple choice-tests for gym classes. It’s a waste of time,” he said. “We are working hard to develop new assessments that would be useful” for teachers.

Lumping teachers together, instead of telling them apart

For now, educators are pondering the implications of an arrangement that groups teachers together rather than distinguishes their effectiveness individually.

“If you have two or three really not-so-great teachers and you take the default, all those teachers are going to get effective or highly effective,” the network official said. “On the flip side, if your school does badly overall on the Regents this year, some really good teachers are going to get screwed.”

Some principals say they tried to mitigate against those possibilities by hinging teachers’ ratings on their colleagues whose students have done well in the past.

“I’m going to try to game it in little ways, [to] tie it to where we think we’re going to get some good performance,” said the Brooklyn high school principal.

“We picked based on past performance,” said Moses Ojeda, principal of Thomas Edison Career and Technical Education High School, where many teachers work in technology subjects.

But those choices, designed to protect teachers, lead to questions about the meaningfulness of the ratings that the new evaluation system will produce.

One teacher who will be rated based on his own students’ scores said the fact that exams in his subject would factor into the scores of his colleagues who teach other subjects would cause him to question all of their ratings. “If you create a system which will work only if administrators don’t follow the rules, it’s a bad system,” he said.

9th Circuit Reminds that Crude and Offensive Remarks Alone Do Not Create a Claim for Hostile Work Environment

LINK

In Westendorf v West Coast Contractors (2013) the Plaintiff, a project manager assistant, claimed hostile work environment based on sexual harassment, based on several sexual comments she heard from her manager, some of which were directed to her and others were directed to another woman. The Court affirmed that dismissal of the case. The Court noted yet again that isolated inappropriate comments, without other evidence of sexual discrimination or unlawful harassment, do not create a viable hostile work environment claim. Plaintiff was, however, allowed to proceed forward with her retaliation claim. This is because even though there was no sufficient evidence to prove the harassment claim, the court found that there was sufficient evidence to allow the Plaintiff to show

This decision makes a lot of sense. It would be impractical and borderline nonsensical to allow every inappropriate comment or sexual innuendo/joke turn into a lawsuit for obvious reasons. The Court requires evidence of unlawful hostility against an employee based on a protected class that goes beyond a few isolated comments, especially of those comments are taken out of context. 

Building Your Retaliation Claim Before You are Fired

07/18/2009

0 Comments

Often, an employee is subjected to unlawful discrimination and retaliation while still employed and weeks or even months before being terminated. Although very "tempting," suing an employer while still employed is problematic. First, you are very likely to lose a job (just because it's unlawful to terminate an employee who exercises his legal rights to bring legal actions, doesn't mean that the employer simply can't violate the law and do it). Secondly, your recovery in any case is likely to be insignificant because you have not sustained any loss of wages, which is at the core of any settlement or judgment.

Despite the above, there are a few important things you can do to line up your "weapons" if and when you get unlawfully terminated as a result of discrimination or retaliation: 

1. Make sure that your boss cannot blame terminating or demoting you on your performance. This is a critical time to do the best you can, as the employer's love to use poor performance as excuse for termination, because it's so subjective and relatively hard, although possible to argue against. 

2. If there are any witnesses to unfair treatment, get their statements in writing if possible, and keep their contact information. In many cases with opposing sides having opposing story, witness statements are crucial. 

3. Keep all relevant documents, emails and other documentation proving discrimination, retaliation, or your complaints to HR or your superiors about the same, as they will be of critical important when proving your case in court. 

4. If you witness discrimination or harassment against yourself or others, complain to HR in a courteous but firm manner and ask for investigation in writing. 

5. If you are terminated, do not sign any releases in exchange for severance before you consult an attorney, as signing a release usually extinguishes all legal claims, committing the signing employee to never sue the employer for any violation.

Then, when the time comes and you are well equipped to fight, the results will be better and the process will be likely shorter, as the employer, facing substantial evidence against them will likely want to settle faster.