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DOE v. ANKER

May 10, 1978

JOHN DOE (a pseudonym), Plaintiff,
v.
IRVING ANKER, individually and as Chancellor of the New York City School District; NAOMI POOLE, individually and in her representative capacity; ARTHUR A. NAREFF, individually and in his representative capacity; FRANK A. ARRICALE, II, individually and in his representative capacity; JAMES BOFFMAN, individually and in his representative capacity; RONALD KING, individually and in his representative capacity; STANLEY KLEIN, individually and in his representative capacity; THE BOARD OF EDUCATION OF THE CITY OF NEW YORK; JOSEPH MONSERRAT, individually and as a member of the Board of Education; JAMES F. REGAN, individually and as a member of the Board of Education; STEPHEN AIELLO, individually and as a member of the Board of Education; JOSEPH G. BARKAN, individually and as a member of the Board of Education; ROBERT CHRISTEN, individually and as a member of the Board of Education; AMELIA ASHE, individually and as a member of the Board of Education; and ISAIAH ROBINSON, individually and as a member of the Board of Education, Defendants



The opinion of the court was delivered by: CANNELLA

CANNELLA, D.J.:

 After a bench trial, advanced and consolidated with plaintiff's application for a preliminary injunction, defendants are directed to afford plaintiff a hearing on their finding that plaintiff was unfit to teach by reason of mental illness. This action is stayed pending the outcome of the hearing.

 FACTS

 In September of 1971, plaintiff was licensed and appointed in a New York City High School as a health conservation teacher to instruct students with physical handicaps. On March 8, 1975, upon completion of his probationary period, plaintiff obtained tenure as a teacher of health conservation.

 In 1975, plaintiff participated in the teachers' strike, which lasted from September 9 to September 16. Upon return to work, a dispute arose between plaintiff and defendant Klein, the assistant principal, concerning the manner in which plaintiff was conducting his classes. On November 2, 1975, plaintiff wrote a letter to defendant King, the school principal, claiming that Klein was harassing him. On November 5, 1975, King observed one of plaintiff's classes. King's report on this observation, which was provided to plaintiff, criticizes plaintiff's conduct and states in part: "At no time during my stay in the classroom did I observe any evidence of instruction taking place." *fn1"

 On or about November 12, 1975, defendant King submitted to defendant Boffman, then assistant superintendent of high schools, a request for a medical examination of plaintiff. See N.Y. Educ. Law § 2568 (McKinney 1970). The request was accompanied by a document entitled "Report of Reasons for Requesting Medical Examination of Teacher." Plaintiff was provided with a copy of the report. The reasons, as stated by King, included plaintiff's excessive number of absences as well as an earlier observation of plaintiff by King, which "revealed that [plaintiff] was either unable or chose not to conduct any instructional program with his students. . . ." *fn2"

 On or about November 13, 1975, Boffman submitted to defendant Arricale, executive director of the Division of Personnel, a request for a medical examination of plaintiff. On November 14, 1975, Arricale approved the request and referred the matter to defendant Nareff, acting medical director. Defendant Nareff, on or about November 18, 1975, notified plaintiff that he was to appear November 26, 1975 for examination at the Medical Division offices.

 On November 21, 1975, defendant King temporarily relieved plaintiff of his teaching duties, as a result of a classroom incident. In a letter to plaintiff, written the same day, King explained the reasons for his decision. He stated that, upon entering plaintiff's classroom in response to a complaint of noise, he "found all of the pupil furniture and the teacher's desk overturned onto the floor." *fn3" The letter concludes: "I find that your contacts with the students continuously results in disorderly behavior which, at times, is extremely hazardous to the safety and welfare of both yourself and your pupils." *fn4"

 On November 26, 1975, plaintiff was examined by two non-psychiatric staff physicians at the Medical Division of the Board of Education. These doctors recommended that plaintiff be examined by a consultant psychiatrist, known as a "panel psychiatrist."

 On December 3, 1975, defendant Boffman observed one of plaintiff's classes. In a letter to plaintiff, as a follow-up to the observation, Boffman criticized plaintiff's failure to prepare written lesson plans and rated his lesson "unsatisfactory." According to Boffman, plaintiff's "failure . . . to plan an effective educational program with stated goals, objectives and outcomes for the pupils in [his] charge has resulted in loss of valuable instructional time." *fn5" Significantly, on December 1, 1975, plaintiff had been placed on penalty probation for a one-year period based upon his participation in the teachers' strike. See N.Y. Civil Serv. Law § 210(2)(f) (McKinney 1973) [the "Taylor Law"].

 On December 17, 1975, plaintiff was observed by Hyman F. Cohen, assistant director of the Bureau for the Education of the Physically Handicapped. Mr. Cohen rated plaintiff's performance "very unsatisfactory," and concluded: "The time spent during this period seemed wasteful and unbearable, since there was no plan, purpose, direction or strategy. There was an atmosphere of boredom and uncontrolled freedom to do as one pleased." *fn6"

 That same afternoon plaintiff was examined by Dr. Edward L. Pinney, Jr., the panel psychiatrist, as had been directed by the Medical Division. Dr. Pinney's two-page report to defendant Nareff, dated December 18, 1975, contains the following statement:

 
It is my belief that [plaintiff] shows residual activity of a paranoid schizophrenic breakdown that could easily result in difficulty in managing a classroom of children in a public school and in difficulties in relating to his supervisors. Accordingly, I think that he is not fit to function as a teacher in the public school system at this time. *fn7"

 In a report dated December 23, 1975, Nareff recommended to Arricale that plaintiff be placed on "health leave" until April 30, 1976, and that plaintiff be re-examined on or about that time to determine his fitness to return to duty. Nareff's report states in part:

 
[Plaintiff] has a past history of severe emotional disturbance. It is the feeling of our physicians and the panel psychiatrist that he shows residual activity of a severe emotional disturbance which would result in difficulty in managing a classroom of children and in difficulties relating to his supervisors. *fn8"

 Arricale concurred in the recommendation and, by letter dated December 23, 1975, advised plaintiff that he was being placed on health leave from January 5, 1976, until April 30, 1976. In the letter Arricale stated that the action was based upon the medical director's finding that plaintiff was "not fit for duty." Defendant Arricale told plaintiff, in this letter, that he would be re-examined in April 1976 and advised plaintiff of his right to an independent evaluation, as provided in the collective bargaining agreement between the Board and the teachers' union. *fn9" On January 5, 1976, plaintiff wrote to Arricale requesting an independent evaluation and further requesting that the relied-upon medical reports be made available to Dr. Leonard Feldstein, plaintiff's physician. On January 22, 1976, Nareff sent plaintiff's physician a summary of the findings of the staff physicians and the panel psychiatrist.

 On March 22, 1976, plaintiff was re-examined at the Medical Division by two non-psychiatric staff doctors. One doctor determined that plaintiff was not fit, and the other expressed "serious doubts about teacher's ability to teach." *fn10" Both recommended that any decision await the report of the panel psychiatrist's independent evaluation.

 On March 26, 1976, plaintiff was examined by Dr. Aaron Stein, a panel psychiatrist. This was the independent evaluation of the decision to place plaintiff on health leave from January 5 to April 30, 1976, that plaintiff had requested. In a letter to defendant Nareff, dated April 5, 1976, Dr. Stein stated:

 
As a result of my reading the records concerning [plaintiff], as submitted by you and by him, and as a result of my examination of him on March 26, 1976, and as a result of my consultation with his physician, Dr. Leonard C. Feldstein . . . and the Board Physician, Dr. Arthur A. Nareff . . . I am making the following recommendation:
 
The medical recommendation of the Medical Board of the Board of Education of [December] 23, 1975 that [plaintiff] be placed on "Health leave from January 5, 1976 to April 30, 1976" is completely concurred in. Details of the medical report which are confidential medical information will be sent to Dr. Nareff. Copies of this report will be sent to [plaintiff]. . . . *fn11"

 The "details" of Dr. Stein's medical report have not been made a part of the Court record. By letter dated April 26, 1976, Arricale advised plaintiff that the independent evaluation supported the decision to place him on medical leave until April 30, 1976. In a second such letter of the same date, Arricale informed plaintiff that, upon Nareff's recommendation, plaintiff's health leave had been extended through the balance of the school year. This letter further advised plaintiff that he would be re-examined by the medical bureau in August 1976 to determine his fitness to return to duty the following term. Nareff's recommendation was apparently based upon plaintiff's examination at the medical bureau on March 22, 1976.

 By letter to Arricale dated May 10, 1976, plaintiff requested an independent evaluation of the decision to extend his suspension. Plaintiff further requested his psychiatrist be provided a copy of the medical report prepared by Dr. Stein, covering the independent evaluation of March 26, 1976, and a copy of the medical report of the non-psychiatric staff doctors, covering the examination at the Medical Division on March 22, 1976.

 On June 18, 1976, plaintiff received a document prepared by defendant King purporting to rate plaintiff's teaching performance "unsatisfactory" for the period from September 3, 1975, through June 30, 1976. The report lists sixteen specific reasons for the unsatisfactory rating, culled principally from the observation reports prepared by defendant Boffman on December 3, 1975, and by Cohen on December 17, 1975.

 On June 23, 1976, Nareff sent plaintiff's physician a summary of the staff examination of March 22, 1976, and a portion of Dr. Stein's independent evaluation report.

 On August 4, 1976, plaintiff was examined at the Medical Division by two non-psychiatric staff doctors. He was accompanied by a union representative who was present during the examination. In a memorandum dated August 10, 1976, Nareff reported to Arricale that, although the examination was not yet complete, the Medical Division's "preliminary judgment in view of [plaintiff's] uncontrolled hostility and erratic behavior is that he will not be fit to return in September." *fn12"

 On September 20 and 22, 1976, plaintiff was examined by Dr. Joseph Sullivan, a panel psychiatrist. Again, a union representative accompanied plaintiff at the interviews. On or about September 24, 1976, Dr. Sullivan sent defendant Nareff an eight-page report of his findings. Dr. Sullivan concluded:

 
I concur in the Diagnosis of Dr. Pinney. It is my opinion that the teacher does suffer from a Residual Schizophrenia. He does not appear to me to be capable of ordinary conversation. I do agree that there is some problem in a doctor evaluating a teacher's fitness for classroom duties. I do express my own opinion, nonetheless, that I think his capacity for classroom duties on the basis of his mental status is very limited. I certainly am of the opinion that his ability to get along with peers and superiors in the public schools is very limited. It was my opinion that [plaintiff] misinterprets extremely readily. He ascribes motivation to the examiner constantly, which motivation is not there. He shows himself to be emotionally unstable.
 
I therefore find [plaintiff] not fit at the present time for teaching. *fn13"

 Based upon the findings of Dr. Sullivan as well as the staff doctors, Nareff issued a report September 28, 1976, recommending that Arricale extend plaintiff's health leave through January 31, 1977. Nareff also urged that plaintiff be re-examined in December 1976 to determine his fitness to return to duty. Arricale concurred ...


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