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Theodore Smith v. the New York City Department of Education

July 18, 2011


The opinion of the court was delivered by: Naomi Reice Buchwald United States District Judge


Plaintiff Theodore Smith ("Smith"), formerly a teacher in the New York City public school system, brings this action pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq., the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq., 42 U.S.C. § 1983, the New York Civil Service Law, N.Y. Civ. Serv. Law § 75-b, the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law §§ 290 et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y. City Admin. Code §§ 8-101 et seq. In his complaint, Smith alleges, inter alia, that the defendants discriminated against him and retaliated against him due to his disability, age, and union membership. Smith also alleges that the defendants defamed him and violated his civil rights by, among other things, releasing an investigative report that concluded that Smith had threatened an arbitrator at a quasi-judicial administrative proceeding.

Before this Court is defendants' motion for summary judgment on each of Smith's claims. Specifically, defendants move for summary judgment on two principal grounds: first, that Smith is precluded from relitigating the findings made by neutral hearing officers at two prior quasi-judicial administrative proceedings; and second, that Smith failed to file a notice of claim, as required by state law.

For the reasons discussed below, defendants' motion is granted.


I. Factual Background

A. Employment Background

Smith began working as physical education and health teacher for the New York City public school system in 1995 and was awarded tenure in 1999.*fn1 (R. 56.1 ¶ 2; Second Amended Complaint ("SAC") ¶ 23.*fn2 ) For the 2004-2005 academic year, Smith was assigned to the New York Museum School ("Museum School"), where Lindley Uehling ("Uehling") served as principal. (R. 56.1 ¶¶ 3-4; Klepfish Decl. Ex. D.)

After the conclusion 2004-2005 academic year, the New York City Department of Education ("DOE") preferred twenty-seven charges against Smith pursuant to section 3020-a of New York's Education Law. (R. 56.1 ¶ 5; Klepfish Decl. Ex. E.) According to the DOE, Smith had engaged in misconduct, neglect of his duties, insubordination, incompetence, and time and attendance abuse throughout the school year. The DOE concluded that this alleged conduct constituted just cause for Smith's termination.

(R. 56.1 ¶ 6; Klepfish Decl. Ex. E.)

B. First Hearing and Appeal

Section 3020-a of New York's Education Law sets forth the procedures that govern a hearing on charges preferred against a tenured teacher. N.Y. Educ. Law § 3020-a. Pursuant to that statute, Jack D. Tillem ("Hearing Officer Tillem") was designated as the hearing officer who would conduct a hearing on the charges against Smith ("First Hearing"). (R. 56.1 ¶ 7.)

At the First Hearing, which lasted eighteen days, Smith was represented by counsel, who presented witnesses and introduced evidence on Smith's behalf, and who conducted cross examination of the witnesses that testified against Smith. (R. 56.1 ¶¶ 8-9, 11-13.) In challenging the allegations, Smith asserted that the charges were unfounded, that Uehling manufactured the claims against him in an attempt to remove him from the Museum School, that Uehling failed to disclose that Smith would have to teach oversized classes, and that the oversized classes adversely affected his health and his attendance. (R. 56.1 ¶¶ 10-12; Klepfish Decl. Exs. D-E.)

The final day of the First Hearing was scheduled for May 10, 2007, and the parties anticipated making their closing arguments. On that date, however, Hearing Officer Tillem recused himself and closing arguments were adjourned. (R. 56.1 ¶ 14.) At first, Hearing Officer Tillem stated on the record that he had recused himself because Smith had accused Tillem of harboring a bias against him. (Klepfish Decl. Ex. D at 1056-59; Klepfish Decl. Ex. F.) Shortly thereafter, Hearing Officer Tillem made clear that he had recused himself because Smith had uttered death threats against him. (Klepfish Decl. Ex. D at 1063-67; Klepfish Decl. Ex. F.)

Following Hearing Officer Tillem's recusal, Howard C. Edelman ("Hearing Officer Edelman") was assigned to oversee the remainder of the First Hearing. (R. 56.1 ¶ 15.) Thereafter, Smith requested, and Hearing Officer Edelman granted, a number of adjournments so that Smith could retain new counsel and Smith's counsel could familiarize himself with the record. (Klepfish Decl. Ex. E at 43-44.)

The parties reconvened on August 10, 2007, at which time Smith objected to having Hearing Officer Edelman decide the case on the prior record and requested a hearing de novo. Hearing Officer Edelman denied Smith's request for a new hearing but permitted Smith to submit supplementary testimony and evidence.

(R. 56.1 ¶ 16; Klepfish Ex. E at 43-44.) Plaintiff, however, refused to avail himself of this opportunity. (R. 56.1 ¶ 16.)

After additional conference calls and after affording Smith and his counsel the opportunity to make a closing argument, which they declined to make, Hearing Officer Edelman closed the record. (Klepfish Decl. Ex. E at 42-47.) Then, on December 4, 2007, Hearing Officer Edelman issued a seventy-seven page opinion. In that opinion, Hearing Officer Edelman found Smith guilty of the majority of the charges preferred by the DOE --specifically, specifications 2, 3, 4-a, 4-b, 4-d, 4-e, 5, 7-a, 7-b, 7-c, 8-a, 9, 10, 11, 12, 15, 16, 18, 19, 20, 21-a, 22, 23, 24, 25, 26, and 27. (R. 56.1 ¶¶ 17-18.)

Among other things, Hearing Officer Edelman rejected Smith's assertions that Uehling failed to advise Smith that he would be teaching oversized classes and that Uehling manufactured the claims against Smith in order to punish him for complaining about his class size. (R. 56.1 ¶ 19.) Hearing Officer Edelman further concluded that Smith failed to properly supervise his classes, failed to establish classroom rules, dismissed his classes prematurely, failed to develop suitable lesson plans or adequately instruct his class, was excessively absent, and deliberately missed scheduled meetings. (R. 56.1 ¶¶ 20-42.)

Smith later commenced an Article 75 proceeding in the Supreme Court of the State of New York to review Hearing Officer Edelman's ruling. (R. 56.1 ¶ 44.) On appeal, the Appellate Division upheld Hearing Officer Edelman's ruling and rejected Smith's claim that he was denied due process. In re Smith v. New York City Dep't of Educ., 67 A.D.3d 555, 556, 890 N.Y.S.2d 12, 13 (1st Dep't 2009), leave to appeal denied, 14 N.Y.3d 705, 925 N.E.2d 933, 899 N.Y.S.2d 129 (2010). In its opinion, the Appellate Division reasoned that due process does not require that a final determination be made by the same neutral hearing officer who presided over the evidentiary hearing. Id. The court further reasoned that "the sole reason that the replacement arbitrator was substituted in this matter was because [Smith] issued threats to the first arbitrator, which led to his recusal," and that Smith was not entitled to profit from his own disruptive behavior. Id.

The New York Court of Appeals denied Smith's application for leave to appeal the Appellate Division's ruling.

C. Second Hearing and Appeal

After Hearing Officer Tillem recused himself, the allegations regarding Smith's conduct were reported to the Special Commissioner of Investigations for the New York City School District ("SCI"), which conducted an investigation into the underlying events. (R. 56.1 ΒΆ 47.) After taking testimony and collecting evidence from various witnesses, including from Smith, who was represented by counsel, SCI concluded that Smith had indeed made death threats against Hearing Officer Tillem and recommended that Smith be ...

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